Citation Nr: 1123739
Decision Date: 06/22/11 Archive Date: 06/28/11
DOCKET NO. 10-44 668 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
ATTORNEY FOR THE BOARD
Michael Wilson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1971 to October 1995, including service in the Republic of Vietnam. He died in January 2008. The appellant is his surviving spouse.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal.
Claims for service connection for diabetes mellitus, service connection for a right eye disorder, and entitlement to an increased rating for bladder dysfunction, for the purpose of accrued benefits, are referred to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on her part.
REMAND
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration.
The record reflects that the Veteran died in January 2008. The death certificate lists his causes of death as respiratory failure, urinary tract infection, and small bowl obstruction, with the underlying cause of death being pancreatic cancer. A February 2008 statement from William B. Grow, M.D., a physician who provided treatment to the Veteran, indicated that the Veteran had metastatic pancreatic cancer in conjunction with follicular lymphoma. The Veteran was not service-connected for either of these disabilities. The Board notes, however, that the Veteran's service records contain multiple DD-1141 forms revealing that he was routinely exposed to ionizing radiation during his active military service. Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes pancreatic cancer and lymphomas other than Hodgkin's disease. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv) (2010).
38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Once a diagnosis of a radiogenic disease is established within the specified period, as defined under 38 C.F.R. § 3.311(b)(5), and a claim is raised that the disease is related to radiation exposure while in service, VA must obtain a dose assessment as to the size and nature of the radiation dose(s) to which the Veteran may have been exposed. 38 C.F.R. § 3.311(a)(1) (2010).
After it is established by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b) (2010). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1) (2010). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311(c)(1) (2010).
As a claim for service connection for the cause of the Veteran's death as due to exposure to ionizing radiation is appropriately raised by the Veteran's record, the case must be remanded in order for the RO/AMC to comply with the procedures detailed in 38 C.F.R. § 3.311 (2010).
Additionally, a review of the claims folder reveals that the Veteran was treated at Florida Hospital East Orlando, in Orlando, Florida, prior to his death. Records from that facility have not been associated with the claims file. Further, VA treatment records reveal that during a May 2007 visit to an Orlando VA outpatient clinic, the Veteran indicated that he was planning to seek private treatment for scattered lymphocytes. Records of this treatment and records of treatment provided by Dr. Grow, cited to above, similarly have not been associated with the claims file. These medical records, especially any terminal treatment records, may provide more details and additional information concerning the Veteran's cause of death. On remand, an attempt should be made to obtain these medical records and any other outstanding medical records pertaining to the disabilities associated with the cause of the Veteran's death.
Finally, the Board finds that the May 2008 section 5103(a) notice that was provided to the Veteran may not be in compliance with Hupp v. Nicholson, 21 Vet. App. 342 (2007). Therefore, while this case is in remand status, the Board finds that the appellant should be provided with additional notice pursuant to this finding.
Accordingly, the case is REMANDED for the following action:
1. Send the appellant a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In particular, the letter should contain a statement of the conditions for which the Veteran was service connected at the time of his death, an explanation of the evidence and information required to substantiate a DIC claim based on previously service-connected conditions, and an explanation of the evidence and information required to substantiate a DIC claim based on a condition(s) not yet service-connected (e.g. radiation exposure) consistent with the decision in Hupp, cited to above.
2. Make arrangements to obtain copies of the Veteran's treatment records from the Orlando VAOPC, dated from June 2007 to January 2008.
3. Ask that the appellant identify any and all treatment facilities/providers that provided treatment to the Veteran from June 2007 until his death in January 2008. Make arrangements to obtain and associate with the claims file copies of records from these facilities/providers. Such records should include treatment records from William B. Grow, M.D., and from the Florida Hospital East Orlando (including the terminal hospitalization report).
4. Thereafter, pursuant to 38 C.F.R. § 3.311(a)(2)(iii), forward the claims file to the Under Secretary for Health for preparation of an estimate of the Veteran's probable dose exposure to ionizing radiation in service.
5. After receipt of the dose estimate provided by the Under Secretary for Health, complete all indicated development as required under 38 C.F.R. § 3.311(b), including forwarding the claim to the Under Secretary for Benefits for review pursuant to 38 C.F.R. § 3.311(c).
6. Thereafter, review the claims file to ensure that the foregoing requested development has been completed in full, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998).
7. Finally, readjudicate the appellant's claim on appeal. If the claim remains denied, provide the appellant with a supplemental statement of the case, and after she has had an adequate opportunity to respond, return this issue to the Board for further appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. See 38 C.F.R. § 20.1100(b) (2010).